During a period of time in 1841 and 1842, there were two governments vying for legitimacy in Rhode Island, the one that had been in existence from the time of the Declaration of Independence and another led by Thomas Wilson Dorr, who objected to the state’s voting requirements. Originally, Rhode Island allowed only landowners to vote. It was an acceptable enough system in a territory where almost all of the citizens were farmers. But with increased industrialization and the migration of many to cities, the fraction of people eligible to vote became progressively smaller, concentrating power in the hands of a land-owning elite. No women or blacks were eligible to vote and by the early 19th century only a minority of white men possessed that right.

Unable to change the structure internally, people took matters into their own hands, prompting the Dorr Rebellion. Rival constitutional conventions were held, leading to parallel elections, and to the separate election of both Dorr and Samuel Ward King as governor of the state. On June 24th, 1842, the King government declared the state to be under martial law. Martin Luther, who sided with Dorr, was alleged to be engaged in traitorous activity and the King government ordered him arrested. Luther Borden effected the arrest, breaking into and searching Martin Luther’s home, and damaging his property in the process.

Martin Luther sued, alleging trespass by Luther Borden. Borden defended himself, claiming he was acting in his official capacity and with the authority of government. Martin Luther countered, asserting that the King government was illegitimate.

Who was to decide which government was the legitimate one? The only possibility was the Supreme Court of the United States, which was confronted with the trespass claim in the famed case of Luther v. Borden. It was in this case that the Supreme Court first articulated the “political-question doctrine.” A copy of the Court’s decision can be read here. Essentially, this doctrine asserts that there are some controversies that are simply not within the legitimate purview of the judiciary to decide. The doctrine is not firmly defined and it has shifted in application over the years. But it is not simply that an issue is controversial that can invoke the doctrine — after all, the Court did not hesitate to make rulings on abortion, racial desegregation, affirmative action, the death penalty, and even the infamous counting of Florida votes ten years ago — an issue that at first blush might seem to be the paradigm of a “political question.” Rather, the federal courts must decline to make decisions in cases particularly where they lack sufficient standards to apply.

The political-question doctrine is centrally at issue in American Electric Power v. Connecticut, which the Supreme Court agreed to hear last week. The case is one of four prominent climate-change cases that relies on the legal theory of “public nuisance.” A “nuisance” results when there is a substantial interference with the right to use and enjoy land that results from the defendant’s activitity, with a “public nuisance” being an unreasonable interference with a right common to the general public. The interference need not be intentional, but can arise from negligence.

The American Power case was brought against a number of power companies by several states — including pipsqueak troublemaker Rhode Island — as well as some private land trusts. Application of the nuisance theory is the same in this case as it has been in the others: The defendants engage in an activity that releases greenhouse gases into the atmosphere, impacting the climate and resulting in an interference with the public’s use and enjoyment of land.

The theory is tidy and almost certainly correct in the abstract.

But even so, every district court that has been presented with this nuisance theory has determined that it is not something the judiciary can rule on because it is a political question. The reasons for doing so are, to me, compelling. The devil is indeed in the details.

Begin by considering the enormous difficulties involved in sorting out causation. The Earth’s climate system is extremely complex: it took roughly 100 years since Svante Arrhenius first quantified the relationship between temperature and atmospheric CO2 in 1896 for climate scientists to settle on a consensus that anthropogenic release of greenhouse gases is warming the planet. And this factor does not operate in isolation, with a number of other natural influences having both warming and cooling impacts. In addition, at least some of the greenhouse gases generated by humanity are absorbed by the oceans and by vegetation. Indeed, it was once thought by many climate scientists that the oceans would provide a sufficient sink to accommodate any level of greenhouse-gas emissions that humans could conceivably produce.

The result is a system in which it is truly impossible to correlate particular acts of generating CO2 or other greenhouse gases with particular climate events. It is very much like Philip Merilees’ concoction of the “butterfly effect,” in which we recognize that the chaotic nature of weather might allow the beating of a butterfly’s wings in Brazil to set off a tornado in Texas. But even with such an understanding, it is inconceivable that we could ever identify the butterfly who caused the problem. Is the answer to condemn every winged insect on the planet?

Those bringing these nuisance-based lawsuits accordingly rely on a theory of “contribution,” claiming that there must be liability on the part of power companies, petroleum companies, etc. because they contribute to the problem. There is no question that they do. But so does almost every single one of the 7 billion people on the planet as they engage in activities that contribute to the generation of greenhouse gases. It is surely possible to single out power companies and assert that they contribute more than an individual like me. But it is equally possible to single out any large group of people: the residents of Los Angeles, Chicago, and Houston, say, or perhaps all people who choose to have children. These large groups contribute greatly to the warming issue.

It is, moreover, simplistic to suggest that power companies and petroleum companies should not engage in their business. They are far too important to maintaining the standards of living that citizens expect and for providing a critically important sector of the world’s economies. It seems plainly unwise to leave it to a small number of judges to decide how to balance the intricate interconnection of these issues — the risk to the environment, the effects on human health, the socioeconomic impacts, and many others. It is better left to the policy determinations made by the legislative and executive processes of government, as imperfect as those may also be.

Currently, the decision of the two judges on the Second Circuit Court of Appeals, who reversed the district court’s determination that the issue is a political question, stand alone in asserting that the judiciary may apply tort nuisance principles to the issue of climate change. Their reasoning can be found here. When I commented some months ago on the Comer v. Murphy Oil case in the Fifth Circuit (see here), I suggested that clear guidance from the Supreme Court would soon be needed. I, for one, am eager to see what they decide.

In August, when the web site Wikileaks released its Afghan War Diary, I commented on some of the legal issues it raised. In light of what I increasingly think is a shrill reaction by the US government to being exposed by information that no one contends is untruthful, I believe it is worth reiterating the things I said in August.

A copy of my earlier post can be found here. And I very much urge people with an interest in what Wikileaks is doing to consider carefully for themselves the Constitutional issues as they were considered by the US Supreme Court in 1971. The First Amendment to the US Constitution is viewed not only in the United States but in many other parts of the world with near-reverance. The issues are not simple ones and to understand where the United States truly stands, not only according to the highly publicized views of the executive and legislative branches of its government, but also as constrained by its judicial branch, it really is necessary to read all of the various concurrences and dissents. The Court’s opinions in New York Times Co. v. United States can be found here.

As you prepare to head off on vacation, you run through the list you have diligently prepared to make sure you haven’t forgotten anything. Clothes for all kinds of weather, something nice to wear when you find a good restaurant, toiletries, and so on. You check that the water is turned off, that you have left detailed notes for the petsitter, that your mobile phone is charged. And, these days, you check for compliance with security restrictions: that you haven’t accidentally put your eyedrops in your carryon bag, that all your liquids are in tiny bottles, that they are neatly packed in a quart-sized bag.

At the airport, things do not go quite as well as you expect. You’re standing in the security line, watching your shoes, your jacket, your sweater, your jewellery going through the x-ray scanner as men acting under the authority of the government scan you with detectors, examine your identification, look for telltale signs of nervousness. Perhaps they even profile you based on the clothing you wear, the shade of your skin, and your age, even though they never admit it.

One of them comes over to you as you move to retrieve your things from the plastic bins. He asks you, “Are these your items?” You’re uncertain why he’s asking but you acknowledge that they are. “Do you have anything in your bag that you’re not supposed to,” he asks. You say you don’t, but why is he asking? He holds up a vial containing white powder. “Did this come out of your bag?” You can feel your palms turn sweaty and a lump forms in your throat. Your voice cracks a bit when you say no, making you worry that it’s all going to make him more suspicious. His face is serious, accusing. “Are you sure?”

It is only after he has frightened you that he confesses it’s just a joke.

Too funny.

What I have described is not fantasy. In January of this year, an employee of the Transportation Security Administration engaged in this prank multiple times with passengers he knew were innocent. My objective in highlighting the story is not to blow it out of proportion — people do engage in pranks, some of which are inappropriate, and they properly acknowledge that their judgment was poor when they consider things more soberly. Instead, my objective is to remind us that the employees charged with implementing security at airports are human and the risk that they will act maliciously is not simply hypothetical.

This is of real concern as the government continues to deploy full-body scanners at airports as part of its security procedures. The scanners are technological marvels and it’s hard not to remember Arnold Schwarzenegger being scanned by something eerily similar in the movie Total Recall. Innocent people simply wanting to travel from one location to another — and without the government having any specific reason to suspect them of wrongdoing — are now expected to allow themselves to be scanned in a way that generates images of their naked bodies through their clothes. Reassurances that privacy protections are in place — by having the viewing officer remote from the scanner, by including imaging techniques that blur facial features, and by implementing a policy requiring deletion of the images — do not really strike at the heart of the privacy concerns. Even with these protections in place, extremely personal details of people’s bodies are displayed to government agents: colostomy appliances, penile implants, evidence of mastectomy or testectomy, and more.

Already it is known that many images have been saved, contrary to the policy. At least one federal security screener in Miami has already been arrested in a conflict that arose when a coworker mocked images of his naked body generated by one of the scanners. That story can be read here. A security worker at Heathrow airport was subject to discipline when he made lewd comments about a coworker who was accidentally imaged by a scanner. That story can be read here.

The deployment of full-body scanners has been challenged in litigation that raises a number of arguments in asserting that they are unlawful. First, the lawsuit alleges that the scanners violate the Fourth Amendment’s guarantee that people have the right “to be secure in their persons … against unreasonable searches and seizures.” It is well-settled that airport security by itself is not an “unreasonable” search that violates the Fourth Amendment. But there is a significant difference between having passengers walk through magnetometers to detect metal before subjecting them to a more thorough search and requiring that every passenger have their unclothed body imaged. To be constitutional, airport searches must be “minimally intrusive,” “well tailored to protect personal privacy,” and “neither more extensive nor more intensive than necessary under the circumstances to rule out the presence of weapons or explosives.” Do full-body scanners meet these criteria?

Perhaps most interesting about the lawsuit, though, is its allegation that the program violates the Religious Freedom Restoration Act. This act prohibits the government from burdening the exercise of a person’s religion, even from generally applicable rules. Many religions make physical modesty a part of their doctrine and rules that force all aircraft travelers to violate their beliefs regarding modesty may well violate the statute.

Airport security has a legitimate role and almost no one maintains that full-body scanners do not have a reasonable place in that security. What is objectionable is the uniform use of such a personally intrusive scanning technology on people who have raised no suspicion that they have any intention other than wanting to board a plane so they can travel from one place to another. Programs that make use of the scanners only when some suspicion exists — after detection of metal by a magnetometer, suspicious behavior, unusual ticket-purchasing patterns, and so on — would generate far less objection among travelers.

Benjamin Franklin has been quoted so frequently since the grim events of September 11, 2001 that to quote him again seems almost trite. But there is nevertheless truth in his warning, which rings especially cleanly in the way it reminds us that the issues we face today are really no different in kind from those faced by contemporaries of the framers of the Constitution: “Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.” If our own bodies do not define an essential liberty … then what does?

It is easy to imagine the scene. Les Amants was French director Louis Malle’s third film and had been tremendously popular in France and other European countries. Many considered the film to be what established him as a serious talent. So when the film was shown in the Coventry Village district of Cleveland Heights in Ohio in 1959, it probably attracted those people in the community who had an interest in seeing the works of foreign talents. One can imagine men and women lining up at the Heights Art Theatre in this bohemian part of Ohio, perhaps pulling their coats tight around them on the cool autumn evening as they waited. Surely the film was not as popular in sleepy Ohio as in the more cosmopolitan American cities of New York or San Francisco, but every part of the country has an element interested in such things. Most waiting to view the film probably considered themselves to be reasonably sophisticated and looking forward to debates over late-night coffee about the merits and failings of Malle’s vision.

There was just one problem. The local government considered the film — which recounts the story of an unhappy upper-class woman who spurns both her husband and her lover for the uncertain excitement promised by a passing stranger — obscene. The manager of the theater, Nico Jacobellis, was fined a total of $2500 for violating Ohio law by possessing and exhibiting an obscene film. It is likely that few today would be in any way shocked by the film’s content, but it was Jacobellis’s conviction that resulted in Justice Potter Stewart’s famous proclamation about obscenity that “I know it when I see it, and the motion picture involved in this case is not it.”

The contours of the guarantee in the U.S. Bill of Rights that “Congress shall make no law … abridging the freedom of speech” is one that the Supreme Court frequently struggles with. Yesterday, the Court heard oral arguments in the case of Schwarzenegger v. Entertainment Merchants Assoc. A transcript of the arguments can be found here.

At issue in the case is a California law that prohibits the sale or renting of violent video games to children. The definition of “violent video game” is reasonably specific in the statute, and this is relevant. The statute seeks to regulate video games in which children play characters that “inflict serious injury … in a manner which is especially heinous, cruel, or depraved in that it involves torture or serious physical abuse to the victim,” with such terms being further defined to include that the “player relishes the virtual killing or shows indifference to the suffering of the victim.”

No matter how strongly one feels about the right to free expression, including the right to expression that involves violent images, it is impossible not to recognize the concern of the legislature in wanting to regulate these types of games. There are numerous studies that have been conducted by social scientists and medical associations that raise specific concerns with video games that go beyond what a viewer of a film or reader of a book experiences. Books and films provide passive experiences. But video games allow the child to “become” the character in the game inflicting the violence, and those studies have found a correlation between playing such games that influences the moral development of young people at an age when their senses of morality and sociability are not fully formed. They have an increase in aggressive thoughts and behavior and become desensitized to violence in both minors and adults.

This science has been criticized, and those criticisms need to be taken into account in a full exploration of the issues. But for my purposes today, suppose that the science relied on by the state is accurate. Does that science then justify this encumbrance on the First Amendment rights to expression? It is not an easy decision. As Justice Scalia amusingly noted during yesterday’s argument, the First Amendment does not read “Congress shall make no law abridging the freedom of speech except those that make sense.”

There are many considerations that the Court needs to make sense of, but two of them stand out in particular. First, how is the producer of a video game to know whether what is produced is a “deviant violent video game” as opposed to a “normal violent video game”? Everyone agrees that some level of violence has always been accepted in artistic expression, with examples ranging from Grimm’s fairy tales to the Bible to cartoons being mentioned during the argument. Such uses can be a powerful part of legitimate messages that are conveyed in artistic creations, and it clearly goes too far to prohibit all violence from any artistic expression, including video games. It is reasonable to expect producers to know what crosses the line and what does not, particularly when every one of us has a different view as to when a certain level of violence becomes too much. Justice Scalia incisively mocked the notion that the state should have a mechanism to examine each video game and decide, using language that makes us cringe and shudder: “You should consider creating such a one. You might call it the California Office of Censorship.”

Second, should the law accept a different treatment for sex and violence? One of the strongest arguments made in favor of California’s law is that it attempts to mirror the standards that have been set forth by the Supreme Court itself in regulating sexual expression. Obscenity can be regulated in the United States, the Court having set forth a test decades ago to delineate when sexual expression crosses the line into unprotected obscenity. The only justification the Court seems to offer is that sexual expression has a “historical tradition” of being regulated while violence does not.

This is a difficult rationalization to accept. And if anything, it appears to provide a result that many feel is backwards. If there is scientific evidence that violent video games may hamper a child’s social development and make him less empathetic to the suffering of others, how does it make sense to allow such expression while regulating sexual expression just because one type of suppression is “traditional” and the other is not.

It is very often the case that things that seemed scandalous years ago seem tame today, particularly when new types of expression are implicated. Print images caused concerns centuries ago. Motion pictures caused concerns decades ago. Video games cause concerns today. And something else will cause concerns in the future. Each of these has been identified as being more “real” and therefore more likely to impact the way children develop, prompting calls for the government to intervene. Anyone watching Les Amants today, with a modern sensibility, is likely to consider it almost prosaic in its themes and portrayals.

In the end, perhaps Justice Stewart’s observation is even more profound than he intended. Times change. Morals change. Technologies change. But I still know it when I see it.

Sometimes things have consequences all out of proportion to what we expect. In my list, Catherine O’Leary’s cow is reputed to have kicked a kerosene lantern in 1871 and thereby cause the Great Chicago Fire, resulting in the death of some 300 people and the destruction of about a third of the city’s value. Gavrilo Princip was a 19-year-old man who assassinated Archduke Franz Ferdinand of Austria, setting off a series of events that resulted in the Great War of 1914 – 1918.

And the poor hired hand? The story goes that one day when Wayne Wheeler was a boy, he was working on his family’s farm and his leg was poked by the hayfork of a drunken worker. It traumatized him and he spent much of his life devoted to the abolition of alcohol, becoming the de facto leader of the Anti-Saloon League. His efforts, organizing churches and other small temperance groups to implement a particularly effective form of pressure politics were instrumental in bringing about passage of the Eighteenth Amendment to the U.S. Constitution prohibiting “the manufacture, sale, or transportation of intoxicating liquors” within the U.S. He claimed to have substantially written the National Prohibition Enforcement Act (a fact that the Act’s official author, Andrew Volstead, repeatedly denied) establishing executive power to enforce the Eighteenth Amendment. The full text of the Volstead Act can be found here.

During the 13 years that prohibition was in effect in the United States, alcohol consumption dropped by an estimated 30 percent as legal avenues for access disappeared and costs through illegal avenues rose higher than many people could afford. It is generally accepted that the consequences of this experiment were mostly a flagrant contempt for the law and the rampant creation of illegal alcohol-distribution mechanisms.

What is sometimes forgotten is the role that physicians played in maintaining access to alcohol. They provided one of the few legal ways to obtain alcohol since the Volstead Act carved out an exception to “use liquor for medicinal purposes when prescribed by a physician.” The alcohol prescription pads of the time look almost quaint today, with alcohol consumption as much a part of modern society as it was in the time before prohibition. The idea of drugstores maintaining shelves of government-produced whiskey to dispense to those with prescriptions strikes our current mindsets as almost amusing. It seems obvious to have been an exercise in futility trying to suppress a product so pervasively a part of the prevailing culture.

The experiment on marijuana prohibition may similarly be coming to end, although that experiment has lasted far longer than the prohibition of alcohol. In the early 1900’s, marijuana had been almost unknown in the United States, but it started to become more popular as Mexicans immigrated into the U.S., prompting efforts to ban it. In these efforts, California has always been key, leading the way as other states progressively followed.

California was the first state to ban marijuana in 1913, with many other states following in due course thereafter. California was also the first state to soften its stance on marijuana consumption, allowing medical uses in 1996. Again, many other states followed in due course. And in next week’s election, California may again lead the way in fully relegalizing marijuana with its Proposition 19. A copy of the text of the proposition may be found here. It is worth noting that efforts to fully legalize marijuana in Alaska have failed, even though a 1975 case found personal use of marijuana at home protected by an unusually strong privacy provision in the Alaska Constitution.

In many ways, the currently availability of marijuana for medical purposes in a number of States mirrors what occurred during the era of alcohol prohibition, although marijuana is probably recognized for more legitimate medical purposes than alcohol. During the period of alcohol prohibition, the availability of medical prescriptions made a mockery of prohibition efforts. To be certain, there were many who believed in the therapeutic value of alcohol and there are genuine medical treatments to be had with alcohol, but most prescriptions were filled simply so that people could experience its intoxicating effects. Similarly today, many believe that medical prescriptions for marijuana make a similar mockery of efforts to prohibit its use more generally. Again, there are legitimate therapeutic uses for marijuana, but an honest assessment of medical-marijuana laws is that they have been used as a wedge to gain legal access to its psychoactive properties.

Even if California relegalizes marijuana in next week’s vote, there is still the matter of federal drug-regulation statutes, which prohibit the use of marijuana throughout the United States. In addition to the banning of marijuana use by several states, the federal government began to regulate its use nationally with passage of the Marijuana Tax Act in 1937. A copy of the Act’s text may be found here. What is perhaps interesting about the Marijuana Tax Act is that it included a specific exception for medical uses prescribed by physicians.

The current Controlled Substances Act, which was passed in 1970 in response to President Nixon’s declaration of a “war on drugs” and supplanted the Marijuana Tax Act, includes no such exception. A conflict thus exists between federal and state law in the several states where medical uses of marijuana are permitted under state law. The conflict was tested shortly after California decriminalized such uses in 1996 in the case of Gonzales v. Raich. A copy of the full opinion can be read here. While the case confirmed the authority of the federal government to ban the use of marijuana even in states that have approved it for medical purposes, the policy of the Obama administration has been not to enforce the federal ban with respect to medical users.

The ultimate impact of California’s decision next week will be interesting and may well take years to understand fully. But one thing is certain: if the proposition passes, it is a certainty that similar proposals will be tried in other states and that additional pressure will be brought to bear on the federal government to follow the lesson of prohibition to its ultimate conclusion.